[Cite as King v. Cleavenger, 2017-Ohio-7973.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
L. R. KING, TRUSTEE : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
TODD CLEAVENGER, ET AL : Case No. 2017CA00008
:
Defendants-Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Canton Municipal
Court, Case No. 16CVG6540
JUDGMENT: Affirmed
DATE OF JUDGMENT: September 29, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendants-Appellants
ANDY A. GINELLA ROBERT P. CAMPBELL
4096 Holiday Street NW 2800 West Market Street
Canton, OH 44718 Akron, OH 44333
Stark County, Case No. 2017CA00008 2
Wise, Earle, J.
{¶ 1} Defendants- Appellants Todd Clevenger, et. al. appeal from the January 10,
2017 Report of the Magistrate of the Canton Municipal Court, Stark County, Ohio.
Plaintiff-appellee is L.R. King, Trustee.
FACTS AND PROCEDURAL HISTORY
{¶ 2} In February 2016, appellants and appellee entered into a commercial
lease agreement (lease) for the property located at 334-336 4th Street N.W in Canton
(premises). The lease states that the premises would be occupied for use as a winery
and for no other purpose. The lease further states lessee is responsible for compliance
with all statutes, ordinances, and requirements of municipal, state, and federal
authorities.
{¶ 3} Appellants later discovered that there was no certificate of occupancy for
the leased premises. Based on that discovery, appellants stopped paying rent, and
failed to deposit rent in escrow with the court. In December 2016, appellee therefore
filed a forcible entry and detainer action in the Canton Municipal Court against
appellants, Todd Cleavenger and All Occupants, Island Palm Winery, LLC, seeking to
evict appellants from the premises for failure to pay rent pursuant to the terms of the
lease.
{¶ 4} In January, 2017, appellants filed an answer and a counterclaim for
alleged damages in the amount of $516,187.81. Appellants admitted in their answer that
they have, since November 1, 2016 unlawfully and forcibly detained from appellee the
subject premises.
Stark County, Case No. 2017CA00008 3
{¶ 5} A hearing was held on January 6, 2017 before a magistrate on the first
cause of action for writ of restitution. The trial court heard testimony from lessee Todd
Cleavenger. Cleavenger indicated that he began renovations on the premises, but the
project was halted when the city building and inspection department advised they could
not run a business on the premises until they obtained a certificate of occupancy.
{¶ 6} On January 10, 2017, the magistrate issued a report finding: 1) Appellee
owns the subject property and rents it to appellants at a rate of $700.00 per month; 2)
Appellants failed to pay rent due on November 1, 2016 and thereafter; 3) Appellants
were properly served with notice in writing to vacate the premises; 4) Appellants failed
to vacate the premises in accordance with the notice, and; 5) appellants were duly
served with notice according to law.
{¶ 7} On the same day, the magistrate ordered a writ of restitution in favor of
appellee, and transferred appellants’ counter claim to the Court of Common Pleas.
Appellants neither filed a motion to set aside the magistrate’s order, nor filed objections
to the magistrate’s decision. Appellants’ counterclaim for damages remains pending.
{¶ 8} Appellants then filed this appeal, and the matter is now before this court
for consideration. Appellants raise one assignment of error:
I
{¶ 9} "THE TRIAL COURT ERRED IN ISSUING A WRIT OF RESTITUTION IN
FAVOR OF PLAINTIFF-APPELLEE."
{¶ 10} In the sole assignment of error, appellant argues the trial court erred in
issuing a writ of restitution to appellees because appellant raised an equitable defense
to non-payment of rent due to the lack of a certificate of occupancy.
Stark County, Case No. 2017CA00008 4
{¶ 11} Appellant failed, however, to file objections to the magistrate’s decision as
required by Civ.R. 53. We therefore agree with appellee that appellants have waived
their right to appeal the magistrate’s decision and the trial court’s adoption of the same.
{¶ 12} As we explained in Lemon v. Lemon, 5th Dist. Stark No. 2010CA00319,
2011-Ohio-1878 ¶ 63-64:
Civ.R. 53(D)(3)(b)(iv) provides that “[a] party shall not assign as error
on appeal the court's adoption of any factual findings or legal conclusion * *
* unless the party has objected to that finding or conclusion * * *.” See, e.g.,
Stamatakis v. Robinson (January 27, 1997), Stark App.No. 96CA303;
Kademenos v. Mercedes–Benz of North America, Inc. (March 3, 1999),
Stark App. No. 98CA50.
Civ.R. 53(D)(3)(b)(iv) further provides: “Except for a claim of plain
error, a party shall not assign as error on appeal the court's adoption of any
factual finding or legal conclusion, whether or not specifically designated as
a finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the
party has objected to that finding or conclusion as required by Civ.R.
53(D)(3)(b).”
However, the plain error doctrine is not favored and may be applied
only in the extremely rare case involving exceptional circumstances where
error, to which no objection was made at the trial court, seriously affects the
basic fairness, integrity, or public reputation of the judicial process, thereby
challenging the legitimacy of the underlying judicial process itself. Dorsey v.
Stark County, Case No. 2017CA00008 5
Dorsey, Fifth Dist.App. No .2009–CA–00065, 2009–Ohio–4894; Goldfuss
v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099, 1997–Ohio–401, at
syllabus.
{¶ 13} Based upon the failure of appellants to object to the magistrate’s decision,
and our failure to find any plain error, we reject appellant’s sole assignment of error and
hereby overrule same.
By Wise, Earle, J.
Gwin, P.J. and
Baldwin, J. concur.
EEW/sg 921